Florida Carry

 

The Florida Attorney General’s position is that anyone carrying a gun should always be presumed to be committing a felony; and apparently, everyone is carrying…

"[A]n overwhelming majority of Floridians are not licensed to carry concealed weapons. As of August 31, 2012, the number of concealed weapon or firearm permits issued in Florida is 971,263. Where Florida had an estimated population of 19,057,542 in 2011, the percentage of the population that is licensed to carry a concealed weapon is only five percent (5%). Given the small percentage of the population that is licensed to carry a concealed firearm, the overwhelming majority of firearms, or 95%, are not licensed to be concealed. Thus, an officer’s suspicion that a firearm is not licensed would be reasonable because, in any given case, there would be, statistically speaking, a 95% likelihood of illegality."
State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (internal citations omitted, emphasis added)

Obviously, this cannot go without answer. ”What will be our reply?!” you ask…

"It has been said that figures lie and liars figure. This statement has never been more appropriate than in response to the State’s contention that 95% of firearms in Florida are not licensed to be concealed. (State’s brief Pg. 20). Such a statement requires ignoring basic rules of statistics, ignoring the lack of available data, ignoring the fact that there is no requirement to license individual guns in the state (doing so is a felony, See Sec. 790.335, Fla. Stat.), and ignoring the fact that some people own multiple guns.

The State’s argument is that because only 5% of the population of Florida, holds a CWFL there is a 95% likelihood that a person with a firearm is committing a crime. Such a statement relies on several assumptions that are easily dismissed as common sense. In order for the State’s argument to be valid, one would first have to ignore all visitors to our state from the 35 states with reciprocity. One would also have to ignore all of the circumstances where no license is required to possess a firearm.Furthermore, the State’s argument also assumes that every man, woman and minor child is carrying a firearm at all times. Only by ignoring these statistical values and making a ridiculous assumption, could the State validate its absurd statistical argument that 95% of persons carrying firearms are doing so illegally."
Amicus Curiae Florida Carry, inc.’s Brief in Support of Appellant, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our Attorney General says that not only do police and prosecutors have reasonable suspicion to frisk you any time you carry in FL, but that carrying also gives probable cause to search and arrest!

"Thus, the crime of carrying a concealed weapon is complete upon proof that the defendant knowingly carried a firearm that was concealed from the ordinary sight of another person. Accordingly, as held by the Third District, knowledge of the absence of a concealed weapons permit is not required in order for an officer to conduct an investigatory stop.

[P]ossession of a firearm did not amount merely reasonable suspicion, but to probable cause. See, e.g., State v. Navarro, 464 So. 2d 137 (Fla. 3d DCA 1985) (holding that a police officer’s observation of a bulge under the clothing of an individual, which the officer in his training and experience determined to be “the outline of a firearm[,] amounted to probable cause to believe that the individual was carrying a concealed weapon, justifying not merely a pat-down, but a search”)."
State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our answer… Shall not be Infringed!

"The rights of Floridians to keep and bear arms are well recognized in the U.S. and Florida Constitutions as well as in Florida general law. To allow detentions and arrests based solely on a person’s possession of a firearm without more, and then to require a person to prove through an affirmative defense that their possession of the firearm was lawful would swallow whole the right. As inconvenient as it might be, the need for enforcement of firearms laws preventing carrying by the unlawful and unskilled, must sometimes give way to the God-given right of the people to both lawfully keep and bear arms, and be free from unreasonable searches and seizures.

The state’s position can be summed up that in order for a citizen to exercise their right under the 2nd Amendment of the United States Constitution and Article I Sec. 8 of the Florida Constitution, the citizen must give up their rights under the Fourth Amendment, to be free from unreasonable search and seizure. According to the Attorney General, persons in possession of a firearm should be presumed to be committing a crime, and should be required to prove before a court of law that their conduct is in fact lawful. Should the Court find in the State’s favor in this case, this would be the first time in American jurisprudence that the exercise of a fundamental individual right has required the abdication of another fundamental right."
Amicus Curiae Florida Carry, inc.’s Brief in Support of Appellant, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

But AG Bondi’s office says:

"The Florida concealed weapon or firearm license application requires an applicant to read and become knowledgeable of the provisions of Chapter 790, Florida Statutes and includes a copy of the statutes in that chapter in the application.

see also State v. Williams, 794 N.W.2d 867, 876 (Minn. 2011) (Page, J., concurring) (“[I]t is likely to come as a shock to all those people who have obtained a permit to carry, hold, or possess a pistol in a public place that by carrying, holding, or possessing the permitted pistol in a public place they subject themselves to arrest.” … )."

State’s Brief on the Merits, Mackey v. State SC12-573 (Fla 2012) (emphasis added)

Our Amicus Brief has was filed with the FL Supreme Court.

In 2013 the Florida Supreme Court ruled that concealed carry licensure was an affirmative defense to the crime of concealed carry.

In 2014 Florida Carry authored an amendment and subsequently and helped to pass SB 290 in 2015.  The 2015 law changes the concealed carry statute to make concealed carry licensure an element of the crime of unlicensed concealed carry.  http://laws.flrules.org/2015/44


Docket Overview: FL Supreme Court Case Number:  SC12-573
Florida Supreme Court Docket

 


 

 

 Date Docketed
Description
Filed By
Notes
03/20/2012 NOTICE-DISCRETIONARY JURIS (DIRECT CONFLICT) PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374  
03/27/2012 JURIS INITIAL BRIEF PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&5 W/APPENDIX & E-MAIL
03/28/2012 No Fee - Insolvent    
04/16/2012 JURIS ANSWER BRIEF RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&5 & E-MAIL
06/27/2012 ORDER-JURIS ACCEPT/BRIEF SCHED (OA LATER DATE)   The Court accepts jurisdiction of this case. Oral argument will be set by separate order. Counsel for the parties will be notified of the oral argument date approximately sixty days prior to oral argument. Petitioner's initial brief on the merits shall be served on or before July 23, 2012; respondent's answer brief on the merits shall be served twenty days after service of petitioner's initial brief on the merits; and petitioner's reply brief on the merits shall be served twenty days after service of respondent's answer brief on the merits. Please file an original and seven copies of all briefs. he Clerk of the Third District Court of Appeal shall file the original record which shall be properly indexed and paginated on or before August 27, 2012. The record shall include the briefs filed in the district court separately indexed.
07/20/2012 MOTION-EXT OF TIME (INITIAL BRIEF-MERITS) PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374  
08/06/2012 ORDER-EXT OF TIME GR (INITIAL BRIEF-MERITS)   Petitioner's motion for extension of time is granted and petitioner is allowed to and including August 13, 2012, in which to serve the initial brief on the merits. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED TO PETITIONER FOR THE FILING OF THE INITIAL BRIEF ON THE MERITS. All other times will be extended accordingly. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
08/14/2012 INITIAL BRIEF-MERITS PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&8 & EMAIL
09/04/2012 MOTION-EXT OF TIME (ANSWER BRIEF-MERITS) RS State Of Florida STATE BY: RS Shayne R. Burnham 85757  
09/13/2012 MOTION-AMICUS CURIAE MP Florida Carry, Inc. BY: MP Eric J. Friday 797901 AS INTERESTED PARTY
09/25/2012 ORDER-EXT OF TIME GR (ANSWER BRIEF-MERITS)   Respondent's motion for extension of time is granted and respondent is allowed to and including October 4, 2012, in which to serve the answer brief on the merits. NO FURTHER EXTENSIONS OF TIME WILL BE GRANTED TO RESPONDENT FOR THE FILING OF THE ANSWER BRIEF ON THE MERITS. All other times will be extended accordingly. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
10/02/2012 ORDER-AMICUS CURIAE GR   The motion for leave to file brief as amicus curiae filed by Florida Carry, Inc., is hereby granted and they are allowed to file brief. The brief by the above referenced amicus curiae shall be served pursuant to Florida Rule of Appellate Procedure 9.370(c). Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, counsel are directed to transmit a copy of all briefs in an electronic format as required by the provisions of that order.
10/08/2012 AMICUS CURIAE INITIAL BRIEF-MERITS MP Florida Carry, Inc. BY: MP Eric J. Friday 797901 O&7 (NOT E-MAILED)
10/08/2012 ANSWER BRIEF-MERITS RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&7 **STRICKEN** SEE ORDER DATED 10/23/2012
10/16/2012 MOTION-BRIEF AMENDMENT RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 FILED AS "UNOPPOSED MOTION FOR LEAVE TO WITHDRAW AND SUBSTITUTE AMENDED BRIEF OF RESPONDENT ON THE MERITS - (0&7)
10/16/2012 ANSWER AMD BRIEF-MERITS RS State Of Florida STATE BY: RS Shayne R. Burnham 85757 O&7
10/23/2012 ORDER-BRIEF AMENDMENT GR   Respondent's unopposed motion for leave to withdraw and substitute amended brief of respondent on the merits is granted and said amended brief was filed with this Court on October 16, 2012. Respondent's brief on the merits filed with this Court on October 8, 2012, is hereby stricken.
11/06/2012 REPLY BRIEF-MERITS PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&7
12/18/2012 RECORD/TRANSCRIPT Hon. Mary Cay Blanks, Clerk D3 BY: Hon. Mary Cay Blanks, Clerk D3 CONSISTING OF 1 VOL. CC PAPERS; 2 VOLS OF RECORD; & 1 VOL SUPPL RECORD
12/19/2012 ORDER-OA SCHED (PREV ACCEPTED)   Order Amended to show oral argument time is at 10:00 A.M. The Court previously accepted jurisdiction. The Court will hear oral argument at 10:00 a.m., Wednesday, April 10, 2013. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary. NO CONTINUANCES WILL BE GRANTED EXCEPT UPON A SHOWING OF EXTREME HARDSHIP.
12/19/2012 ORAL ARGUMENT CALENDAR    
12/26/2012 NOTICE-SUPPLEMENTAL AUTHORITY PT Anthony Mackey B08859 BY: PT Michael T. Davis 63374 O&1 (12/27/12: REQ'D 6 COPIES) - 6 COPIES REC'D 12/28/12
04/10/2013 ORAL ARGUMENT HELD    
10/17/2013 Decision  

... [W]e hold that the trial court properly denied Mackey’s motion to suppress, albeit for different reasons than those articulated by the Third District below.

The Conflict Case

Based on the prior analysis, we conclude that the decision in Regalado is factually distinguishable from the decision below. Here, Officer May initially approached Mackey in a non-threatening manner and participated in a consensual encounter. It was Mackey’s response to a question asked by Officer May during the consensual encounter that led Officer May to reasonably and articulably suspect that Mackey might be engaged in illegal activity. On the other hand, in Regalado, the officer stopped the defendant at gunpoint and ordered him to the ground solely on the basis that the officer believed the defendant was carrying a firearm in the waistband of his pants. Regalado, 25 So. 3d at 601-02. The officer did not ask the defendant any questions, and the Fourth District Court of Appeal specifically noted that “no information of suspicious criminal activity was provided to the officer other than appellant’s possession of a gun.” Id. at 601. Given the differing factual circumstances that preceded the two different stops at issue, we conclude that even though the decisions appear to be in conflict, the cases can be reconciled, and no actual conflict exists.

CONCLUSION

In light of the foregoing, we approve the holding—but not the reasoning—of the Third District Court of Appeal that the Terry stop of Mackey was valid under the United States and Florida Constitutions. We further approve the conclusion of the Third District that licensure is an affirmative defense to the crime of carrying a concealed weapon. See § 790.01, Fla. Stat. (2013). The case is remanded for further proceedings consistent with this opinion. It is so ordered

 


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